Moscow City Council v Bankers Trust Company and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COOKE |
| Judgment Date | 05 June 2003 |
| Neutral Citation | [2003] EWHC 1377 (Comm) |
| Docket Number | 2002/702, 2002/709 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 05 June 2003 |
[2003] EWHC 1377 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand
London, WC2
Mr Justice Cooke
2002/702, 2002/709
MR G DUNNING AND MR P KEY (instructed by Hogan & Harston) appeared on behalf of the Claimant
MR M BLOCH (instructed by Clifford Chance) appeared on behalf of the 1st Defendant
MR M SULLIVAN (instructed by Watson, Farley & Williams) appeared on behalf of the 2nd Defendant
Introduction
This is a hearing which arises out of the judgment I gave on 19 March 2003, in which I rejected applications made under section 68 of the Arbitration Act 1996. In this judgment I shall use the same abbreviations as I used in my earlier judgment.
IIB and Bankers Trust sought to challenge the arbitration award on the ground of serious irregularity affecting the tribunal, the proceedings or the award. IIB, in essence, complained under section 68(2)(a), (d) and (h) that the arbitrator had failed to act fairly and impartially in accordance with section 33 of the 1996 Act in the manner in which he came to his decision, failed to comply with the requirements as to the form of the award, and failed to deal with all the issues that were put to him, thus frustrating the object of the arbitration, namely the fair resolution of the disputes between the parties.
Bankers Trust's approach to the award was not dissimilar, save that it was based upon section 68(2)(d) alone and was more restricted in its ambit, being limited to the arbitrator's alleged failure to deal with two issues. Bankers Trust contended that the parties were entitled to a decision from the arbitrator on issues where the arbitrator could not safely resolve the disputes without doing so, where the parties attributed importance to them, and where the arbitrator himself attributed importance to them.
The hearing of these applications took place in private by reason of the terms of CPR rule 62.10(3) since no application was made for it to be heard in public. Moscow did not apply for a public hearing, being content with a private hearing and indeed stressing the sensitivity of the issues involved. It thus waived any right to a public hearing, whatever that means or involves. It was not until the judgment was handed down in draft to the parties' lawyers for typographical and manifest errors to be pointed out, and the result was known, that a difference emerged between the parties. Moscow then stated that it wished to make the judgment public, whilst the other parties stated that it was private and should remain unpublished. No prior notice of any such difference between the parties had emerged and the judgment had not been framed with an eye to any such dispute.
Both IIB and Bankers Trust appear to accept that Moscow can refer to and publicise both the result of the award and the result of the judgment, but maintain that because the underlying policy of arbitration involves privacy, or confidentiality, not only was the challenge to the award rightly heard in private in this court but the judgment, like the award, should not be available for publication. Moscow, to the contrary, maintains that, regardless of the fact that the hearing was in private, an order of the court is not a private document and, subject to particular categories of exception which it says are inapplicable to the present case, there is no basis for the court directing that the judgment should remain secret permanently.
The CPR regime
The procedure in all civil courts is now regulated by the Civil Procedure Act 1997 which by section 2 gave authority to the Civil Procedure Rule Committee to make rules to be approved by the Lord Chancellor. The current rules include CPR rule 39.2 and CPR 62.10, the latter of which provides that rule 39.2 should not apply to arbitration claims. The regime for such "arbitration claims", as defined in CPR 62.2, which includes the applications to which my earlier judgment related, is therefore to be found exclusively in CPR rule 62.
CPR Rule 62.10 reads as follows:
"(1) The court may order that an arbitration claim be heard either in public or in private.
(2) Rule 39.2 does not apply.
(3) Subject to any order made under paragraph 1-
(a) the determination of
(i) a preliminary point of law under section 45 of the 1996 Act, or
(ii) an appeal under section 69 of the 1996 Act on a question of law arising out of an award
will be heard in public, and
(b) all other arbitration claims will be heard in private.
(4) Paragraph (3)(a) does not apply to-
(a) the preliminary question of whether the court is satisfied that the matters set out in section 45(2)(b) or -
(b) an application for permission to appeal under section 9(2)(b)."
CPR Rule 39.2 sets out the general rule that a hearing is to be in public and in sub-rule (3) provides that a hearing may be in private for a number of different reasons: for example, (a) if publicity would defeat the objects of the hearing; (c) if it involves confidential information, including information relating to personal financial matters, and publicity would damage that confidentiality; and (g) the court considers this to be necessary in the interests of justice. In addition, in the practice direction to the rule at 39PD1.5, a list of different types of hearings is set out, which in the first instance are to be listed by the court as hearings in private, under rule 39.2(3)(c), as hearings which involve confidential information.
There are a limited number of rules which refer to hearings in private, such as CPR 34.9( 3), CCR 27.17(5) and CCR 49.12(5), as well as the remnants of old rules of the Supreme Court, namely Rules SC 46.5(4) and SC 52.6, but the old rules are of limited assistance in the present case.
As is plain from the terms of CPR 62.10, for arbitration claims, there is no general rule that a hearing is to be in public, nor any list of criteria to be applied if an exception is to be made to that general rule, as is the case for matters governed by CPR 39.2(1) and (3). Whereas CPR 39PD1.5 sets out ten types of proceedings which should, under CPR 39, be listed by the court as hearings in private in the first instance, unless and until a judge decides otherwise with the benefit of any representations made to him and after having regard to article 6(1) of the European Convention on Human Rights, there is no equivalent list of criteria in CPR 62.10.
It should be noted, however, that the terms of CPR 39.2(3), in setting out the criteria necessary for a hearing to take place in private, refer to all those matters which previously would have been considered those relevant to a hearing taking place "in camera," ie one which was not open to the public and where reporting would be restricted.
CPR 62.10 , which displaces CPR 39.2 so far as arbitration claims are concerned, uses the terms "public hearings" and "private hearings" in the same way as CPR 39.2. Where either rule addresses the question of a private hearing, it plainly does so, not simply as a matter of administrative convenience, but as a matter of policy decided upon by the Rules Committee. Whereas it is possible that in some circumstances a hearing in private in civil proceedings may simply be a matter of administrative convenience, particularly under the old rules of court, the list in CPR 39PD1.5 makes it plain that all those matters fall within one of the specific criteria in CPR 39.2(3), namely that the hearing involves confidential information.
In Clibbery v Allen [2002] FAM 261 the President of the Family Division referred to three categories of case, namely those to be heard in open court, those heard in private and those heard in secret. In the third category, the information disclosed to the court in the proceedings remains confidential. Both in that case and in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 a distinction was drawn between situations where the court sits in private merely as a matter of administrative convenience and those where the court sits in private (previously referred to as "in camera") in the exceptional circumstances where the nature of the application is so sensitive that there should be restrictions not only on attendance by members of the public but on publication of what has taken place. This occurs in special circumstances, for example where there are issues involving children or national security or secret processes, where publication would defeat the purpose of the hearing. Lord Woolf, then Master of the Rolls, in Hodgson's case set out the principles applicable prior to the Civil Procedure Act 1997 and the new CPR of 1998 in relation to work transacted "in chambers" which, he equated to the words "in private" which are now used in CPR 39.2. He stated that what occurred during proceedings in chambers in those circumstances was not confidential or secret just because it took place in chambers, and information about what occurred there and the judgment or order pronounced could, and in the case of any judgment or order should, be made available to the public when requested.
Section 12 of the Administration of Justice Act 1960 provides that the publication of information relating to proceedings before any court sitting in private is not of itself to be a contempt of court except in the particular cases thereafter set out, involving children, mental health applications, national security, secret processes, and where the court, having power to do so, expressly prohibits the publication of all...
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